Tag Archives for " Scots Law "

Apr 06

Damage and destruction of property in retail stores by alleged Corona Virus victims

By ste7en8 | Corona Virus

During these difficult and unprecedented times there have been various reports of people wilfully, maliciously and recklessly coughing and spitting on items on retail shelves in supermarkets. This legal blog has been released to clarify the legal aspects of such an offence.

The very act of coughing or spitting on items within retail stores means that the retail supermarket must destroy all of the affected items and clear the entire aisle of the products to which the customer came into contact with. There is also other associated costs, not just from the destruction of food items but also the deep cleaning of the entire supermarket which can be rather costly.

One recent and disgusting attack was carried out by a New Zealand man who filmed himself walking about a retail store coughing and spitting and then uploaded the video to his social media accounts which was copied before the individual concerned deleted the video.

These are NOT pranks, but are heinous acts and as such criminal offences that are deliberate attacks on the public at large and may endanger human life and must be dealt with robustly by the Crown Office and Procurator Fiscal Service and the Scottish Sheriff Courts.

The COFPFS has already released a statement in connection to this as can be seen below. 

Statement from Crown Office and Procurator Fiscal Service

Any reported person who deliberately endangers life, or causes fear and alarm by pretending to do so, including by coughing on or spitting at someone, will be dealt with robustly by Scotland's prosecution service.
Scotland's prosecution service will take action to protect public safety at all times and has a range of responses available to tackle unacceptable criminal conduct that may arise during the coronavirus pandemic.
Coughing on or spitting at someone, depending on the circumstances, may be an assault or constitute the crime of culpable and reckless conduct. It is difficult to imagine a more compelling case for prosecution in the public interest.
COPFS is working closely with Police Scotland to ensure the continued effective investigation and prosecution. of crime, properly addressing criminal behaviour that threatens public safety and the safety of our emergency workers.

Friday 3rd of April 2020

There are a number of legal issues surrounding this type of offence. The offender may be attempting to spread an infectious disease which would be held as culpable and reckless conduct as reckless endangerment of the lieges (public) again, held under the common law of Scotland.

What is the law in relation to the destruction of property?

The crime of malicious mischief is that of destroying or damaging the property of another, or interfering with it to the detriment of the owner or lawful possessor. The criminal offence is held under the common law of Scotland and security operatives can arrest for this offence as can any member of the public as a citizens arrest.

The common law crime of malicious damage is the intentional or reckless destruction of or damage to the property of another.

Previous stated cases have held the following to be criminal acts of malicious mischief; 

  • destroying crops 
  • killing or injuring animals 
  • knocking down walls or fences​
  • wilful fire raising
  • switching off electricity supply causing economic loss

The mens rea of the crime in the case of intentional damage consists in the knowledge that the destructive conduct complained of was carried out with complete disregard for, or indifference to, the property or possessory rights of another.

The case of Ward v Robertson, 1938 highlighted; 

“It is not essential to the offence of malicious mischief that there should be a deliberate wicked intent to injure another in his property ... it is enough if the damage is done by a person who shows a deliberate disregard of, or even indifference to, the property or possessory rights of others”.​

Malice does not require proof of spite or of any other form of motive.

What is required in a charge of malicious mischief is a wilful intent to cause injury to the owner or possessor of the property. This injury may be either in the form of physical damage or in the form of patrimonial loss.

The component parts of this type of crime are very few. What is stated is that the property in question must have belonged to or been in the possession of another. That property must have been damaged intentionally or recklessly. There must have been knowledge, or facts from which knowledge can be inferred, that the conduct complained of would cause damage to a third party’s patrimonial rights in the property in question.

That’s the crime of intentionally or recklessly damaging or destroying another person’s property, without permission can take many forms. It can result in physical damage or economic loss.

It’s a crime of commission, not omission. The resulting damage must have been caused by a positive act on the accused’s part. 

I can think of no better fit to the deliberate and malicious act of coughing upon or spitting on items that are for sale to the general public, especially during a global pandemic where thousands of live's have been lost to the Corona virus.

The criminal act can be intentional or reckless. Whether the accused’s intention was to cause damage or loss is something to be inferred or deduced from what’s proved to have been said or done. A reckless act involves conduct carried out with utter disregard of the consequences, when looked at objectively.

For the Crown to prove this charge, the court would have to be satisfied that: 

  1. the accused acted in the way set out in the charge
  2. he did so intentionally or recklessly
  3. his actions caused loss or damage to property
  4. that property belonged to or was in the possession of another person.”

Defining the parameters of Malicious Mischief

Despite the general parameters of malicious mischief these are well understood. In its typical form it consists in intentional or reckless damage to, or destruction of, the corporeal property of another person. As such, malicious mischief is sufficiently broad to embrace the closely related statutory crime of "vandalism"—an offence which was introduced into the law by s.78 of the Criminal Justice (Scotland) Act 1980.  

Malicious mischief is also broad enough to include fire­raising, which could be regarded merely as an aggravated form of causing damage. However, the offence has existed as a distinct crime for centuries, and, even today there are arguments in favour of retaining a separate crime of fire­raising, to mark it out as an especially dangerous form of criminal damage.

Prior to the decision of the High Court in HM Advocate v Wilson, 1984 S.L.T. 117, it was accepted that the crime of malicious mischief required damage to, or destruction of, corporeal property. That decision, however, challenged the traditional view of the law, and extended malicious mischief to include causing "patrimonial loss" to a third party by "interfering" with his or her property. 

HM Advocate v Wilson 1984 S.L.T. 117

In the case of HM Advocate v Wilson the individual was charged with "wilfully, recklessly and maliciously" activating an  emergency stop button on a generator at a power station, as a result of which electricity was stopped leading to economic loss and not physical damage. On appeal the High Court of Judiciary held that 'damage' included shutting off a power station thereby stopping power being produced caused economic loss and therefore was malicious mischief. 

The corona virus pandemic is deadly and no one is under any assumptions as to how deadly it can be hence why a national lockdown has been ordered by the UK prime minister and the first minister of Scotland. 

Apr 03

Spitting or coughing at frontline retail staff and security operatives

By ste7en8 | Corona Virus

There has been a  number of reported incidents in the media around the world of people deliberately spitting and coughing at retail staff and security operatives at retail stores during the Corona Virus pandemic.
This legal blog will pertain to acts 'carried out' as to differentiate between an act threatened and a physical assault carried out. 
A separate legal blog has been written on the subject of threatening behaviour and would be prevalent if the reader started with that separate legal blog first and then move onto this legal blog for further clarification.

There are two basic legal issues at hand during the coronavirus pandemic and people who spit or cough at those on the frontlines such as key workers in NHS, Police, Retail, Security Operatives. 

Statement from Crown Office and Procurator Fiscal Service

Any reported person who deliberately endangers life, or causes fear and alarm by pretending to do so, including by coughing on or spitting at someone, will be dealt with robustly by Scotland's prosecution service.
Scotland's prosecution service will take action to protect public safety at all times and has a range of responses available to tackle unacceptable criminal conduct that may arise during the coronavirus pandemic.
Coughing on or spitting at someone, depending on the circumstances, may be an assault or constitute the crime of culpable and reckless conduct. It is difficult to imagine a more compelling case for prosecution in the public interest.
COPFS is working closely with Police Scotland to ensure the continued effective investigation and prosecution. of crime, properly addressing criminal behaviour that threatens public safety and the safety of our emergency workers.

Friday 3rd of April 2020

What is assault in Scots Law?

The basic definition is “An assault is an attack on the person of another”. The crime of assault consists of a deliberate attack on another person with evil intent. Proof of evil intention, in the sense of intending to cause physical injury or fear of physical injury, is essential. Injuries caused accidentally or carelessly aren’t assaults. Weapons may or may not be involved. Injury may or may not result. So, menaces or threats producing fear or alarm in the victim are assaults.

The legal term used to describe victims of crime in Scotland is 'complainer'.

As is evident in law a complainer does not need to actually contract the coronavirus, just the mere threat of it occurring whenever a person spits or coughs in the face of another person and thereafter claiming to have the virus is prevalent to arrest and charge for serious (aggravated) assault.

Assault to injury can be committed by;

  • severe injury
  • injury of the person
  • permanent disfigurement
  • the effusion of blood
  • the danger of life
  • cutting and stabbing

The corona virus and attempted transmission from one person to another through an attack of coughing or spitting deliberately at another would clearly be held as an aggravated crime which is to say that it is clearly a serious assault and any civilian can carry out a citizen's arrest. Those on the frontlines such as security operatives protecting shop staff from daily abuse will face such incidents now face this very risk of serious and potential attempted murder charges.

Deliberately coughing or spitting on or at someone during the Coronavirus pandemic is likely to be charged as an 'aggravated assault' meaning that it is a more serious form of assault than a basic assault charge due to the severity of the Covid-19 virus and the likelihood of transmission which has the potential to cause the loss of human life.

What is culpable and reckless conduct?

There are a number of ways in which culpable and reckless conduct can be committed and a few of these have been highlighted as below for clarification. Culpable and reckless acts causing injury to others or created risk of injury would meet the definition.

A broad range – extending ‘assault’ – which also causing injury.

There are two ‘general’ offences

1. Reckless Injury

  • recklessly injury a person.
  • Unintentional - but objectively reckless

2. Reckless endangerment

  • Reckless behaviour...which is objectively dangerous to others.

Divergence of Assault and Reckless injury

  • Assault is a crime of intent – evil intention
  • Cannot be committed recklessly; carelessly; negligently

There are different ways in which reckless conduct may become criminal under the Scottish legal system. Reckless conduct to the danger of the lieges (public) will constitute a crime in Scotland and so too will reckless conduct which has caused actual injury.

The standard of recklessness is the same in both statutory and common law crimes.

The test is entirely objective. It is open to the trial judge, in charging the jury to adapt the judicial test.

In legal terms the phrase is "conduct or activity was such as to betray an utter indifference for the safety of the victim or the public

Reckless conduct can be committed in a number of ways.

  • reckless driving
  • the conduct or activity was such as to betray an utter indifference for the safety of the victim or the public
  • Buying alcohol for a minor who became seriously incapacitated by consuming it is culpable and reckless conduct
  • Physical force or restraint that is excessive and causes injury 

Where the accused is charged with a common law offence involving recklessness, the Crown requires to prove “an utter disregard of what the consequences of the act in question may be as far as the public is concerned” or, “a recklessness so high as to involve an indifference to the consequences for the public generally”.

As an expert witness and a door supervisor with over 32 years active service I can think of no better charge for individuals who spit or cough 'at or on' our NHS staff, Police, Retail staff and Security Operatives who are standing on the thin blue line as one and as key workers protecting our local communities 

Apr 02

Threatening to Spit or Cough on Frontline Key Workers

By ste7en8 | Corona Virus

There has been a number of reported incidents in the media in the U.K. and around the world of people deliberately spitting and coughing at retail staff and security operatives at retail stores during the Corona Virus pandemic. 
This legal blog will pertain to acts  threatened as opposed to having been  'carried out' as to differentiate between an act threatened and a physical assault carried out in Scots Law. 
A separate legal blog has been written on the subject of physical assault in regards to actions carried out.
A further legal blog will be published shortly on the law in relation to the Emergency Workers (Scotland) Act 2005 and further legal guidance.

What is the law in relation to 'threatening' &/or Abusive behaviour?

Previously the law in Scotland was held under the Common Law of breach of the peace when threats were made. The offence was that it was against the public order and decency that we expect a civil society to act out in such a abhorrent manner and as such it was clear that such behaviour was contrary to the common law.

The law in Scotland has somewhat developed rapidly in this area and can now be held under the Scottish statutory instrument (Act of the Scottish Parliament) under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

This is commonly referred to as a Section 38 CJLSA

In recent years a charge under Section 38 Criminal Justice and Licensing (Scotland) Act 2010 has become one of the most prosecuted criminal offences in Scotland.

Where someone is accused of threatening or abusive behaviour, instead of being charged with a breach of the peace, individuals are now more likely to be charged under this statutory offence instead. The 2010 Act lays down the type of behaviour likely to form a Section 38 offence.

What is threatening behaviour?

Section 38 states that a person (“A”) commits an offence if-

(a) A behaves in a threatening or abusive manner, 

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.”

The types of behaviour likely to be charged under section 38 are similar to what would have been previously charged as a Breach of the Peace (above), clear examples from case law show the following:

  • Shouting and swearing
  • Fighting
  • Abusive or threatening behaviour 
  • Abusive or threatening telephone calls, text messages and social media posts.
  • Disorderly conduct
  • Domestic abuse

Section 38(1) introduced an objective test, which essentially means that if an individual's conduct was likely to cause a “reasonable person” fear or alarm, then they can be found guilty irrespective of whether or not any of the witnesses were in a state of fear or alarm. This was confirmed through the case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87.

Penalties for Conviction under S38

For less serious offences under summary procedure, imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both can be applied by the courts. Although it was previously rare for this type of criminal charge to be prosecuted on indictment, where the sentencing is more severe, imprisonment for a term not exceeding 5 years, or a fine, or both. 

It should be stated that this aspect of Scots Law shall see judicial developments through numerous cases being reported in the media daily of people being threatened by individual's claiming to have the deadly corona virus. Again, in most cases previously this type of charge very rarely ended up with a custodial sentence, this will undoubtably be dependant on the nature of the conduct and the individual circumstances of a person convicted. The corona virus is recognised as a potentially deadly infection and as such this will greatly impact upon the future criminal cases.

Defence to Threatening or Abusive behaviour

There is a statutory defence for a person charged with a section 38 offence, and, that is to show that the behaviour was, in the particular circumstances, reasonable

Apr 28

Widow sues security company over chokehold death of her husband

By ste7en8 | Door Supervision , Physical Intervention , Scottish Law , Use of Force

A widow whose husband died after being choked by a pub bouncer has won a legal battle against insurers after suing the door steward’s former employers for damages.

A judge in the Court of Session ruled that an insurance company, which was seeking to avoid paying out on the basis that its liability was excluded by criminal acts, is obliged to indemnify the security firm after Fiona Grant raised an action claiming the bouncer’s employers were “vicariously liable” for the death of her late husband Craig Grant.

Murder trial

Lord Uist heard that Mr Grant died after being escorted from the Tonik Bar in Aberdeen on 9 August 2013, and that a post mortem examination certified the cause of death as “mechanical asphyxia”.

The first defender Jonas Marcius was subsequently charged with the murder of the deceased but, following a trial at Aberdeen High Court he was convicted of assaulting the deceased by “seizing him on the neck, forcing him to the ground, placing him in a neck or choke hold and restricting his breathing; and in January 2015 he was sentenced to a community payback order with an unpaid work element of 250 hours.

The pursuer raised an action for damages claiming that the death of her husband was caused by the “negligence” of the first defender at common law, for which the his then employers Prospect Security Ltd (second defenders) and bar owners Blu Inns Ltd (third defenders) were both “vicariously liable”, and against International Insurance Company of Hanover Ltd (fourth defenders) – which provided public liability insurance to the security firm – in terms of the “Third Party (Rights against Insurers) Act 2010.

But the fourth defenders argued that they were not obliged to indemnify the second defenders.

Insurance policy

The principal submission for the fourth defenders was that their liability to indemnify was “wholly excluded” by clause 14 of the policy of insurance, which stated that the insurers were not liable for “deliberate acts, wilful neglect or default”.

It was argued that the first defender’s actions amounted to an assault and whether or not he intended to kill the deceased was “irrelevant”; he had intentionally committed a blameworthy act which caused the death of the deceased – an act which was “clearly and unambiguously excluded” by the terms of the policy.

With reference to the case of Hawley v Luminar Leisure Ltd [2006] PIQR P17, in which the insurers were held liable to indemnify the insured for one of their door stewards having, apparently without provocation, punched a bystander so hard that he had suffered severe brain injury, clause 14 operated to exclude or limit liability for criminal or otherwise unlawful acts committed by a door steward.

Alternatively, if liability was not wholly excluded by clause 14, it was limited to the sum of £100,000 because the actions of the second defenders’ employees amounted to “wrongful arrest” in terms of clause 20 and extension 3 of the policy.

‘Fault and negligence’

However, on behalf of the pursuer it was submitted that the death of the deceased was caused by the “fault and negligence” of the first defender, who was at the material time acting “in the course of his employment” with the second defenders, who were insured by the fourth defenders.

His actions were not “wilful or deliberate” in terms of the policy as he did not intend to kill the deceased and there was no evidence that he was reckless, as confirmed by the result of the criminal trial, and clause 14 applied only when the outcome giving rise to liability was the intended objective.

The more obvious explanation was that the first defender was simply “over-zealous” in his actions, which caused the death negligently, and because of the “contra proferentem” rule the ambiguity in the interpretation of the contract had to be resolved against the fourth defenders.

The pursuer’s claim did not arise from wrongful arrest, as there was no arrest, but from a breach of duty at common law; the proximate cause of the claim was “breach of the duty of care” rather than deprivation of liberty.

Since neither of the exclusion clauses applied, it was argued that the fourth defenders were obliged to indemnify the second defenders.

‘Contra proferentem’.

The judge agreed that the fourth defenders were obliged to indemnify the second defenders in respect of their liability to the pursuer arising out of the death of the deceased and that the second defenders’ right to indemnity had been transferred to and vested in the pursuer under sections 1 and 3 of the 2010 Act.

In a written opinion Lord Uist said,

“The question which I have to decide is a pure question of construction of the policy of insurance entered into between the second and fourth defenders, and in particular of the expression ‘deliberate acts wilful neglect or default’. In approaching this task I must apply the principles of construction set out above, in particular the contra proferentem rule.

“In my view it is important to bear in mind what this action is about and the legal basis for it. The claim is a derivative claim by the widow of the deceased arising out of his death. The basis of the action is that the first defender failed in his duty of reasonable care for the safety of the deceased and so caused his death.

“The pursuer does not aver, and therefore would not seek to prove should the action proceed to proof, that there was any wilful act, wilful neglect or default on the part of the first defender causing the death of the deceased. In my opinion, applying the contra proferentem rule and adopting the approach of the court in the case of Hawley, the submission for the pursuer that the clause applies only when the outcome giving rise to liability, namely death, was the intended objective is correct.

“It is quite clear, and, I think, accepted by both the pursuer and the fourth defenders, that the first defender did not wilfully, intentionally or deliberately set out to cause the death of the deceased. The death was an unintended and unfortunate consequence of his assault upon the deceased.”

Lord uist - Judge

He added,

“Contrary to the submission made on behalf of the fourth defenders, I do not accept that whether or not he intended to kill the deceased is irrelevant. Nor do I accept that the way in which the pursuer has framed her case is irrelevant. The case pleaded by the pursuer is that the death of the deceased was caused by the fault and negligence of the first defender.

“There is no suggestion in her case that he intended to kill the deceased. Neither is there any suggestion in her case that the deceased was subject to unlawful arrest as defined in the policy.

“An unlawful arrest could not competently form the basis of a derivative action of the type pleaded by the pursuer. In my opinion the references by the fourth defenders to unlawful arrest are wholly irrelevant: an action based on unlawful arrest would have to have been brought by the pursuer in a different capacity, as a representative of the deceased.”

Lord uist - Judge

Jun 01

YES, Trespass Law’s really DO exist in Scots Law!

By ste7en8 | Scottish Law

There are many myths that surround the Scottish Legal system. One such myth is that trespass does not exist in Scots law. I have herd this countless times by security operatives and even security trainers who deliver training courses to security operatives, often with little or poor legal knowledge themselves and deliver training courses and empart such mythology as fact due to their lack of legal knowledge.

Trespass is a civil wrong, called a delict in Scots law. 

The origins of trespassing laws actually date back in Scotland many centuries.  In fact to be more precise it dates back to a court decision from 1791 in the case of Livingstone v Earl of Breadalbane states that;

Definition of trespass

Under the Trespass (Scotland) Act 1865, trespass is considered a civil wrong but can also sometimes be considered a criminal offence,.

A description of trespass in Scots Law is ‘the process of entering another person’s property or land without permission’.

Livingstone v Earl of Breadalbane [1791]

"…every man is the proprietor of his grounds, and entitled to the exclusive possession of them… No man can claim a road or passage through another man’s property… without a servitude… for amusement of any kind, however necessary for health…”

Livingstone v Earl of Breadalbane & the Trespass (Scotland) Act 1865

Some individuals may believe that this ancient court case does not actually bear much relevance to modern laws, but a person’s right to the full exercise of their property is protected by Protocol 1, Article 1 of the European Convention on Human Rights. Although the court decision from 1791 is old, it still accurately states the current legal position on trespass.

The legislation that established trespass as an offence (The Trespass (Scotland) Act 1865) has been amended by the Land Reform (Scotland) Act 2003 which establishes universal access rights to most land and inland water. People only have these rights if they exercise them responsibly by respecting people's privacy, safety and livelihoods, and Scotland's environment. The Scottish Outdoor Access Code provides detailed guidance on the responsibilities of those exercising access rights and of those managing land and water and sets out a number of exceptions where the land access right doesn't apply:

However, the waters were muddied by the introduction of what is commonly known as “the right to roam.” Public access rights were created by the Land Reform (Scotland) Act 2003. This Act provides the public the right to be on and cross most land and inland water in Scotland in a responsible manner. However, public access rights do not apply to the following places:

  • Houses, gardens and non-residential buildings and associated land
  • Land in which crops are growing
  • Land next to a school and used by the school
  • Sports or playing fields (where exercising access rights would interfere with their use)
  • Airfields, railways, quarries, construction sites and military bases
  • Visitor attractions or other places which charge for entry.

For a more extensive list of places where public access rights do and do not apply, see the Scottish Outdoor Access Code.

Where a member of the public accesses land which is not covered by public access rights, they are trespassing. A court can therefore make an order to prevent trespassers from entering the land. Breach of such a court order could become a criminal offence.

However, land owners also have responsibilities. If a member of the public is injured while exercising their public access rights, the land manager or owner could be liable for injuries sustained if they did not take adequate precautions to protect those on their land.

Criminal Law

This may fly in the face of what some security operatives have been previously informed whilst attending a licence linked security course for their door supervisors or security guards licence.

In Scotland, Trespass can sometimes also constitute a criminal offence, e.g. trespass which breaches poaching laws. It can also be criminal to damage someones property whilst in the act of trespass.

Whilst most of the Criminal Justice and Public Order Act 1994 does not apply in Scotland, the sections concerned with trespass and several others DO apply.

Access which doesn't comply with the rights set out in the Scottish Land Reform Act would still constitute trespass. Trespass is generally committed by persons or animals, and must be distinguished from 'encroachment' which is committed by things. In Scotland, trespass is only committed by things if their presence on the land is temporary. So, if someone moved a boundary fence, the fence would be encroaching (not trespassing) on your land. However, the law is similar to the English law in that if you allow this state of affairs to continue unchecked, then you will be deemed to have consented to the encroachment and you will lose your rights to object. You can ask the individual to stop trespassing which will prevent any acceptance or consent to the trespass and preserve your rights to act against it.

The defences to trespass are:

  • Consent
  • Judicial Warrant
  • Emergency
  • Exercise of a right. For example, this could be a servitude, a public right of way, or an access right under part 1 of the Land Reform (Scotland) Act 2003.

Regarding remedies, interdict is a possible remedy in Scotland as in England & Wales. 

However, it should be noted that this remedy is discretionary and the person asking for interdict must show the likelihood of future trespass before the court will award interdict.

In addition, in Licensing law in Scotland if an 'Agent of a Licensee' asks a person to leave licensed premises, then they must do so as refusal would legally constitute Trespass.

Therefore a door supervisor or bar staff or even the Licensee themselves are legally permitted to use force to eject a trespasser. The use of force MUST be reasonable in the circumstances to which is being dealt with.

Any excessive use of force can be pursued in the civil or criminal courts so it is vitally important that ALL security operatives fully understand what legally constitutes Reasonable Force. Finally, damages can occasionally be obtained provided they can be proven, although this would be legally problematic for someone if they are the one who refused to leave peacefully when requested to do so, but that wouldn’t stop a case for damages if someone had legally been subjected to unreasonable force.

Section 116 of the Licensing (Scotland) Act 2005

Refusal to leave premises

Under this section the law states that where a person refuses or fails to leave any relevant premises as mentioned in subsection (1) or (2), an authorised person may—

(a) remove the person from the premises, and

(b) if necessary for that purpose, use reasonable force.

Another legal option is to call the police who are legally duty bound to provide ‘assistance’ in removing a trespasser from Licensed premises under section 116, subsection (4), (a) which states:

(4) A constable must, if—

(a) asked by an authorised person to assist in exercising a power conferred by subsection (3), and

(b) the constable reasonably suspects the person to be removed of having refused or failed to leave as mentioned in subsection (1) or (2), provide the assistance asked for.

Definition of relevant premises

It is worth noting that under the Licensing (Scotland) Act 2005 it states 'relevant premises' which are defined in the act of the Scottish parliament as any premises that serves alcohol. this would include off licensed premises such as supermarkets and off licensed premises.

Trespass on shops and licensed premises

This can also occur when an individual enters another property or piece of land with permission, but then subsequently that permission is withdrawn and the individual involved refuses to leave. For example, a person who walks into a shop or licensed premises, causes a commotion but refuses to leave upon request from the manager of security staff.

In R v Armagh Justices (1897) 2 Ir 57, Holmes J stated that a licence holder could pick and choose his customers. In an even earlier case, R v Rymer (1877) 2 QBD 136, it was held that a member of the public could not insist on being served in a public house.

Licensed premises, as well as those classified as relevant premises are not a “public place” and a member of the public cannot insist on remaining or attempting entry after they have been legally refused. The customer is there by invitation of the licensee and under their permission, only. Legally that invitation can be withdrawn at any time.  Any attempt to remain on the premises or refusal to leave will see the person legally regarded as a trespasser, and again, an agent of the licensee such as a door supervisor can lawfully use 'reasonable force' to evict the trespasser.

The other aspect in refusal is that the term of 'undesirable' has no specific legal meaning, other than that of a person who the licensee or their agent, such as a door supervisor (acting on behalf of their employer/client) decides that their custom is not desired and the person is not entitled to a legal explanation, although they can ask, but the licensee, nor their agent (door supervisor) needs to provide an explanation. Again, the premises are classified as a private business and as such the law is on the owners side, so long as the customer, or would be customer is not discriminated under one of the protected characteristics of the Equality Act 2010 such as age, sex, sexual preference, or disability. There are many cases  where business owners or security staff have clearly refused entry due to a person's sexual orientation, or other protected characteristic and damages (Delict) have been awarded.